Whelan v Police
[2005] SASC 205
•10 June 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHELAN v POLICE
Judgment of The Honourable Justice Gray
10 June 2005
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - FINGERPRINTS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Appeal against conviction - appellant convicted of serious criminal trespass in non-residential building and larceny - identity at issue at trial - reversal of onus of proof - Crown adduced evidence of the appellant's fingerprints on glass door of cabinet - police destroyed glass door prior to trial - appeal on grounds that Crown had failed to make out its case and that destruction of crucial Crown evidence called for permanent stay of proceedings - evidence relating to glass door crucial to Crown case - considerable confusion regarding evidence surrounding glass door - magistrate erred in not ordering a stay of proceedings - appellant denied opportunity to effectively cross-examine Crown witnesses on evidence relating to glass door - confusion surrounding evidence relating to glass door and destruction of door amounted to unfairness to accused and miscarriage of justice - absence of bad faith by police did not preclude stay being ordered - Held: appeal allowed - permanent stay of proceedings ordered.
Criminal Law (Consolidation) Act 1935 (SA) s 132, s 169, referred to.
Holmden v Bitar (1987) 47 SASR 509; Duncome-Wall v Police (1998) 197 LSJS 398; Moffa v R (1977) 138 CLR 601; Chamberlain v R (No 2) (1984) 153 CLR 521; Hoch v R (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30; Shepherd v R (1990) 170 CLR 573; Peacock v R (1911) 13 CLR 619, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"destruction of evidence"
WHELAN v POLICE
[2005] SASC 205Magistrates Appeal
GRAY J:
Introduction
This is an appeal against conviction.
The issue at trial was whether the prosecution had established identity. It was said that the Crown had not made out its case. Alternatively, it was said that the destruction of a critical item of evidence should have led to a permanent stay of proceedings.
On 21 December 2004 the appellant, Brett Charles Whelan, was convicted of the offences of serious criminal trespass in a non-residential building[1] and larceny.[2] He was sentenced to 15 months’ imprisonment with a non-parole period of nine months. The sentence was suspended on his entry into an 18-month unsupervised good behaviour bond.
[1] Section 169 of the Criminal Law (Consolidation) Act 1935 (SA).
[2] Section 132 of the Criminal Law (Consolidation) Act 1935 (SA).
It was alleged at trial that on about 7 March 2003 at Dernancourt the appellant entered “Old and New Antiques”, an antique store, as a trespasser and stole various items with the approximate value of $2,500.
It was the Crown case that the appellant’s fingerprints were located on the inside of the glass door of a large, locked cabinet that had been broken into and abandoned at the premises. The glass door was rectangular. It was described by prosecution witnesses as the right-hand side door. It was removed from the cabinet during the trespass. The glass door had a groove cut into the glass on one side, used as a handle to slide open the door when attached to the cabinet - the indented groove. A piece of the glass door was missing in one corner, indicating that it had been broken. Fingerprint impressions were located on the glass door. They were tested by a fingerprint expert. Evidence was given matching the appellant’s fingerprints with those found on the glass door.
Ms Wilson, a shop assistant employed at Old and New Antiques, gave evidence that the cabinet had not been opened for any customers on the day before the trespass and that no one was permitted to place their hands in the locked cabinet unless the shop assistant was present.
It was the appellant’s account that he was in the shop as a customer on the day prior to the trespass. He was with his wife. He said that on that occasion his fingerprints must have been left on the glass door of the cabinet. It was said that the evidence led by the Crown left a reasonable doubt as to whether the fingerprints were located on the inside or the outside of the glass door. This became an issue at trial.
Notes were made and photographs were taken of the fingerprints on the glass door. However, the photographs were of poor quality and aspects of the notes ambiguous. At the time of trial, the glass door alleged to disclose the fingerprints of the appellant had been destroyed by the police. The destruction of this important item of evidence will be discussed later in these reasons.
It was agreed by both counsel that the central issue on appeal was whether the destruction of the glass door left the evidence at trial in such confusion as to warrant an acquittal or caused such prejudice to the appellant as to warrant a stay. In order to consider and resolve these questions, it is necessary to recount the history of the matter in more detail.
During the hearing of the appeal, the submission was advanced that the magistrate had reversed the onus of proof. Application was made to amend to include this ground. The appeal proceeded on the basis that the amendment was allowed.
Destruction of Evidence
As earlier observed, after photographs of the glass door on which fingerprints were discovered were taken, the glass door was “thrown out”. Constable Spence, the crime scene investigator, gave evidence that the destruction of the glass door was in accordance with general police practice. Having labelled and photographed the fingerprints, Constable Spence considered that the glass door was no longer needed. He gave the following evidence:
Q.The glass door that you took from the shop down to the Holden Hill Police Station and is depicted in photographs 1 and 2, what did you do with that glass door after you photographed the prints.
A.I took all the stickers off the door and I have attached them to my work file and the glass itself I believe I just threw that glass door out.
Q. You believe you just threw it out.
A. Yes.
Q. Do you know when you threw that glass door out.
A. Some time after 7 March.
Q. It was before 5 December.
A.Yes, I imagine it would have been on the same night I would have put it in the rubbish then.
Q.By what authority did you destroy that glass.
A. I think I spoke to people at the shop about whether they wanted the glass back.
Q.So you got permission from the owner of the glass not to return it to them. Are there any standing orders about destruction of evidence which you photographed for fingerprint purposes.
A.The evidence is what I photographed so the evidence was maintained.
Q.Do you have any standing orders about the destruction about the primary object upon which the fingerprints were located, photographed and examined.
A.No.
Q. There are no standing orders.
A.No, the normal procedure for crime scene taking photographs is to throw away pieces of glass.
Q. The normal procedure.
A. Yes.
When cross-examined, Constable Spence maintained that the destruction of the glass door after photographs of fingerprints had been obtained accorded with normal police practice:
A.There are a number of orders about dealing with exhibit property, dealing with having items photographed and being able to dispose of them because of storage facility problems with anything that the police may gather, but items of no value as a piece of broken glass is a decision made by the individual crime scene investigator, but the normal practice for most crime scene investigators is to throw it out.
Q.When you say of no value, what constitutes something of value. A value to whom.
A.A value to I guess the person who owned it. If the person said they don’t want it anymore there is no value. It’s a piece of broken glass. It’s valueless.
Although Constable Spence destroyed the glass door believing it to be both valueless and useless, the course of the trial demonstrated that the glass door was relevant, probative and in the circumstances a critical item of evidence. It should have been preserved. The police practice that allowed the glass door to be destroyed should be amended to ensure that such items of evidence are preserved.
Pre-Trial Disclosures
In an affidavit dated 15 February 2005 the solicitor who represented the appellant at trial deposed that despite numerous attempts the appellant was denied the opportunity to inspect the glass door from which fingerprints were identified. This was because the police scene examiner destroyed the glass shortly after the fingerprints were photographed. Counsel contended that in the circumstances of the case and given the importance of the location of the fingerprints to the factual issues in dispute at trial, the appellant’s lack of opportunity to examine the fingerprints and his subsequent conviction amounted to a miscarriage of justice.
Counsel for the appellant submitted that at a pre-trial conference on 21 November 2003 the appellant’s solicitor was handed an affidavit of Constable Spence stating that he had examined the glass door of the cabinet and located the appellant’s prints on the inside face of the door. It was said that the prosecution provided no other information about the fingerprints despite earlier requests. It was submitted by counsel for the appellant that it was impossible for the defence to determine the basis of Constable Spence’s assertion that the finger-prints were on the inside face of the glass door until the Crown tendered his notes during the course of the trial in October 2004.
Statements of Crown witnesses Constable Batty, Constable Poppy, Constable Andrews and an affidavit of Constable Spence were provided to the solicitors for the appellant on 5 December 2003. An affidavit of Constable Andrews was provided on 20 January 2004, stating that the fingerprints identified on the glass door were not those of Mrs Whelan. It was not until 24 February 2004 that the solicitor for the appellant was notified that the glass door had been destroyed.
The solicitor contended that efforts were made to speak with Constable Spence about his investigations prior to the trial but an appointment for that purpose was cancelled. She said she was only provided with the photographs of the fingerprints depicting the labels on 1 October 2004. The trial commenced on 5 October 2004. It was said that due to the late production of the photographs and the notes containing the diagram of the location of the prints, counsel for the appellant was unable to identify the inconsistency between Constable Spence’s evidence and the evidence of Ms Wilson until final submissions. Counsel submitted that she was unable to cross-examine the Crown witnesses about this inconsistency with consequent prejudice to the appellant’s defence. This, it was said, led to a denial of a fair trial.
In an affidavit dated 16 February 2005 the trial prosecutor deposed that two affidavits were provided to defence counsel on 5 December 2003. These affidavits were from Constable Andrews, regarding his analysis of the fingerprints and their subsequent identification as those of the appellant and an affidavit of Constable Spence with two accompanying photographs referring to his examination of the glass and subsequent location of the fingerprints examined. A previous affidavit of Constable Spence was provided to defence counsel in court on 21 November 2003. A further affidavit of Constable Andrews was said to have been provided on 3 February 2004.
It was contended by the trial prosecutor that Constable Spence’s notes were provided by facsimile to counsel for the defence on 22 September 2004. It was said that the only correspondence received by the prosecutor from defence counsel requesting information regarding the location of the prints was dated 18 August 2003. The prosecutor was of the view that defence counsel’s requests were adequately addressed in Constable Spence’s affidavit provided to counsel on 21 November 2003. A further affidavit with photographs was provided on 5 December 2003.
The prosecutor stated that the police file indicated that defence counsel did not request to view the glass door until 28 January 2004. A faxed reply was said to have been sent on 24 February 2004 advising of the destruction of the glass door.
The purpose of recording this history is the explain the conduct of the trial. A number of arguments advanced on the appeal were not advanced to the magistrate. Counsel for the appellant explained that the problems in obtaining information about the Crown case left trial counsel in an invidious position. However, on appeal full argument of all issues were ventilated.
The Trial
Application for a Stay
On 21 November 2003 at a pre-trial conference counsel for the appellant made an application for a stay of the proceedings on the grounds that the police failed to provide the defence with information about the location and identity of the fingerprints. That application was refused by a magistrate on 27 April 2004.
On 5 October 2004 at the commencement of the trial before a different magistrate, counsel for the appellant renewed the application for a stay on the basis of the continuing failure and delay by counsel for the Crown to supply essential information about the location and identity of the prints. This application was adjourned. The trial commenced.
Crown Case
The Crown case was circumstantial. The Crown opened its case on the basis that the glass door of the locked cabinet had been broken into and the appellant’s fingerprints located on the inside of the glass door which had been broken at its top right-hand corner.
The Crown called evidence from the owner of Old and New Antiques, Helena Lazauskas. She recalled that on the morning of 7 March 2003, she was called into the store after the reported break-in. She observed that the back door of the shop had been forced open, the cabinet containing jewellery emptied, a dinner set was missing and other stock disturbed. She explained that it was the practice in the store to keep the cabinet locked.
Ms Lazauskas described the cabinet as being made of wood and glass, containing shelves which displayed jewellery and having sliding glass doors locked with “a sort of long catch and then it had a bolt”. She indicated that the lock on the glass door was positioned “near the second shelf from the bottom”.
She explained that the sliding glass overlapped slightly. She said there was a groove on each glass door used to open the doors. When initially asked about the positioning of the grooves, Ms Lazauskas said they were:
… in the centre of each door … In the middle when they were closed but in fact they were on the edge.
When asked about the condition of the broken glass door when she arrived at the shop following the break-in, Ms Lazauskas said:
It was broken and the thing I do recall very well was that there was a distinct finger print on the inside of the glass which may have been, I can’t recall now because it was a long time ago, 18 months is a long time to recall, but it was in such a place that I think the person would have had to put their hand in here. But the glass was broken. It was on the inside.
When asked where the glass door was broken, she replied, “I think it was at the bottom”. This evidence did not accord with the Crown opening.
Ms Wilson had been working at the shop on 6 March 2003, the day before the trespass. She had closed and locked the shop at about 5pm. The following day she was called into the shop after being informed of the break-in. On arrival, she noticed that the glass cabinet had been broken into and the contents removed. She explained that the right-hand side sliding door of the cabinet was missing and had been “put down the left-hand side”. She said the glass had been broken from the corner of the door. She said the glass door was broken “up in the top” on the right-hand side. She explained that the glass doors had grooved handles. The grooved handle on the door removed from the cabinet during the trespass was positioned to the right side of the glass door. When asked where the lock was positioned on the cabinet, Ms Wilson indicated the metal shelf in the centre of the doors and the cabinet. Ms Wilson said that she observed fingerprints on the inside of the glass door.
Ms Wilson explained that the cabinet was generally kept locked and only opened by a shop assistant at the request of a customer. She said that she would clean the glass doors, inside and out, up to twice a day, depending on how many customers had looked at it. She said that she did not recall opening the cabinet on the day prior to the break-in. No other person was working with Ms Wilson on that day. She recalled looking at the cabinet during the course of the day and did not observe any fingerprints.
When cross-examined, Ms Wilson recalled a man and woman coming into the shop on 6 March 2003, the day before the incident, enquiring about a ring in the cabinet. She said she recalled the woman asking to look at the ring but did not recall opening the cabinet or the woman trying the ring on.
The Crown further relied on evidence from Constable Spence, an investigating crime scene officer. Constable Spence took notes at the time of the investigation upon which he relied when giving evidence. Included in his notes was a drawing of the broken glass door indicating where fingerprints were located. The drawing depicted the broken part of the glass door being situated at the bottom corner of the door. This was inconsistent with the Crown opening and with the evidence of Ms Wilson.
Constable Spence photographed the glass door and the fingerprints. These were the photographs that Constable Andrews used for the purpose of fingerprint identification. The photographs did not show the crime scene. There were no photographs of the cabinet or of the glass door as first located. The photographs did not show on which side of the glass door the indented groove was located. The photographs did not show whether the break to the glass door was at the top or the bottom.
Constable Spence’s evidence included the following exchange:
A.… the 15 fingerprints I photographed were on the side of the glass which is the opposite side of the groove which was cut into the glass, so not on the same side of the glass that the groove is.
Q.How did you determine that.
A. I could see the groove and I also have written down in my notes.
Q.Perhaps you could indicate on your notes for the benefit of everyone where that is.
A.On the drawing of the piece of glass. I have an arrow pointing to the groove and I have written ‘Groove cut into door as handle on opposite side new to fingerprints’ and also there is another note on the side of the page referring to the fingerprints being on the inside of the cabinet.
Q.Can you just read that note.
A.‘This ideal glass would be inside cabinet when door fitted as handle cut into opposite side.’
Constable Spence said that he did not find any fingerprints suitable for comparison during his investigation other than those photographed.
When cross-examined as to where the lock was fitted on the glass door, Constable Spence said:
At the time I made the notes I noted that I thought it was the bottom of the door.
…
I don’t believe my notes are wrong on that point but seeing the doors is - that is a piece of glass that can go either way, there is nothing fitted to it for a track, it just sits inside the cabinet, then yes it could go in either way.
Constable Andrews of the Fingerprint Bureau in Adelaide undertook a comparison of the fingerprints shown in a photograph taken of the glass door with fingerprints taken from the appellant. Constable Andrews identified the fingerprints on the glass door as matching the fingerprints of the appellant. Other fingerprints located on the glass door remained unidentified.
From the photographs of the fingerprints, Constable Andrews was unable to determine on which side of the glass door the indented groove was positioned. In other words, he was unable to determine from the photographs whether the fingerprints were on the same side of the glass door as the indented groove, the outside, or the opposite side, the inside.
Defence Case
It was the defence case that the only evidence tending to prove the commission of the offence was the discovery of the fingerprints on the glass door. The critical question was to determine the side of the glass door on which the fingerprints had been located. The appellant gave evidence that provided an innocent explanation for his fingerprints being located on the outside surface of the glass door. His evidence was supported by the testimony of his wife.
In evidence-in-chief, the appellant provided the following account of events occurring on 6 March at Old and New Antiques:
A.My wife and I went [to Old and New Antiques] in the afternoon. We done a couple of shops prior to that and that was on the way because we lived in Paradise.
…
Q.What happened when you went in.
A.We searched around for a gift for our daughter and had a basic look around.
…
I saw a hairdressing set which I thought was German and we were thinking about purchasing it.
Q. Did you.
A. No.
...
It was sold, virtually 10 minutes after we walked in, to a blonde-haired lady.
…
Q. What did you do then.
A.I looked at my bits and pieces that I looked and Kylie went and looked at her bits and pieces.
…
I was looking at books, a particular book that I saw there was the Titanic book.
...
Q.Did you do anything about that book.
A.Asked the lady at the counter the price and she made a phone [sic] to find the price and came back with $10 but we did not purchase it.
Q. What was Kylie doing while you were looking at what you were looking at.
A. She was looking at some jewellery.
…
She called me over to help have a look at two or three pieces that she liked.
…
She asked the lady at the counter to have a look at a couple of pieces.
…
The lady come over to see to have a look inside the cabinet and I can’t vaguely remember the whole thing, but I presume that she opened the door. I helped open the door or somewhere along those lines and had a look at a couple of pieces of jewellery. We did not purchase them either.
…
Q. Did you see the woman get the key.
A. No.
Q. Did you see her unlock the cabinet.
A. I cannot recall.
...
Q.When you look at items inside a store what is your practice for looking at them. How do you look at them.
A.As a collector of antiques I’m hands on with a lot of things, with nearly everything, to do with antiques. When I look at bits and pieces my hands are on it. I look at a cabinet my hands are on it. Everything is hands on.
When cross-examined, the appellant said that he may have helped Ms Wilson open the door of the cabinet:
I may have helped open the door, that’s all I can say. My fingerprints are on the doors so that’s the only thing I can come up with that would have led to that being there.
Kylie Whelan provided the following account of her and her husband’s visit to Old and New Antiques on 6 March:
A.[The appellant] was looking at all books and china and then I called him over because I wanted to have a look at this ring that was in a cabinet. I asked the lady if I could have a look and she got a key out of the drawer, opened it up and she actually let me took the ring out and I called [the appellant] over to have a look.
…
Q. Where did she get the key from.
A.From a drawer in the desk where she was sitting at. She pulled it out, it was in a jar, took the key out of the jar, shut the drawer, came over, unlocked it, left the keys in the lock and I called [the appellant] over. He came over, leaned over and he had a look.
…
Q.Where were [the appellant’s] hands in relation to the top of the cabinet and the bottom of the cabinet on that day.
A.One would have been probably, his hands probably would have been on top to like hold the cabinet and go look around and the other one probably would have been on the glass.
When cross-examined as to the appellant’s contact with the glass door, Mrs Whelan indicated the way in which her husband touched the glass door. The transcript records:
Witness indicates the left hand placed on the glass about mid height and near the leading edge of one of the glass panels. If looking at he [sic] cabinet on the right hand side.
Mrs Whelan gave evidence that the appellant touched the outside of the glass. She stated that at the time one of the glass doors was open.
The Magistrate’s Findings and Conclusions
The magistrate identified the central issue in the case at trial as follows:
It is a central issue in the defendant’s submissions that there was reasonable doubt regarding whether the panel was facing inwards or outwards at the time Wilson observed it after the trespass as it lay on the floor of the shop. Clearly, if the defendant’s fingerprints were placed on the internal surface at the time of the trespass, he is misleading the court. On the other hand, if there is a reasonable possibility consistent with his and his wife’s innocent explanation that the same surface was facing outwards at the time Wilson closed the shop, then his account gains credibility and he is entitled to an acquittal.
The magistrate found that the appellant’s fingerprints were located on the inside of the glass door of the cabinet. Summarising the factual circumstances, the magistrate observed:
[The appellant’s] fingerprints were located on the inside of a larger cabinet (P8) that had been broken into and abandoned at the premises. The finger print impressions were located in the region of ground indent serving as a handle in the leading edge of the right hand door. The right hand door was one of two which slid open allowing entry to the contents within. A ground indent exists in the left hand door corresponding to the position of its counterpart in the right hand door. Numerous unidentified other finger prints were located on the opening panel. Other areas were apparently not tested because the entry point to the cabinet was by the right hand sliding door (facing the cabinet front).
The fingerprints are significant in terms of the shop assistant Wilson’s evidence. It was not the subject of address. According to her, she would ensure the cleanliness of the locked glass panelled display cabinet by cleaning it twice a day if necessary. Further, she maintained that the day before the trespass, the cabinet had not been opened for any one, thereby negating an inference that the defendant’s fingerprints could possibly appear inside on the Thursday preceding the trespass. No one was permitted to place their hands in the locked cabinet if unlocked by the shop assistant.
The cabinet itself had two glass sliding panels in plastic track top and bottom of the cabinet front. The other sides were timber encased glass panels of fixed nature. The defendant’s fingers, thumb and partial side palm prints were located on the right hand sliding glass panel. According to the prosecution case, the handle (comprising a ground indent in the glass panel at the edge of it) was on the outer face of the sliding glass panel. That was the location at which the defendant’s left hand thumb, palm and fingerprints were located on the inside of that glass panel. The top right corner of the panel had been intentionally broken during the trespass to dislodge the chrome sliding ratchet lock thought by the police scene examiner to be placed there. None of the property stolen was recovered. No other primary evidence was located to implicate the accused. However, it was a pertinent question to ask how the defendant’s fingerprints could appear on the inside of a locked glass cabinet within a shop premises in which a criminal trespass had occurred.
The magistrate described the Crown case as relying on the evidence of Ms Wilson which was said to exclude any reasonable possibility that the appellant handled the door in innocent circumstances consistent with the appellant’s account. The magistrate found Ms Wilson to be an “honest witness not prone to embellishment or dogmatic attitude” and made the following findings of fact based on her evidence:
-Ms Wilson secured the shop premises, including the cabinet, at about 5pm on Thursday 6 March;
-a person trespassed on the shop premises and broke into the cabinet some time on the evening of 6 March or morning of 7 March;
-Ms Wilson was the only shop attendant on the premises on Thursday 6 March;
-when Ms Wilson left the premises on 6 March, the cabinet was situated with its sliding doors facing the shop assistant’s desk and was locked.
The magistrate considered the appellant’s account of events and summarised the defence case as follows:
It was the defendant’s account that he was legitimately in the shop on the Thursday, 6th March 2003 with his partner and witness Kylie Whelan. On that occasion his fingerprints must have been lodged on the sliding glass door. Subsequently the same glass panel was broken by unknown persons later that day or early upon the next day. Kylie Whelan supported the defendant’s account. It was said that in fact the prosecution case did not support an inference that the defendant’s fingerprints were necessarily upon the inside of the cabinet. If the glass had been reversed in the slide so that the outer aspect faced inwards, and the grooved indent was on the inside, there was a ready explanation for the defendant’s fingerprints to be on inner aspect unwittingly reversed to the outside. Even if that was not the case, the photographs did not preclude the finger prints being on the outer aspect of the glass, since the photographs are not clear regarding the matter.
The magistrate identified “significant problems” with the appellant’s account. It was said to be inconsistent with the evidence of Ms Wilson and assumed a particular hypothesis related to the handling and position of the glass door of the cabinet which the magistrate found to be unlikely.
The magistrate found the appellant to be a “far from satisfactory witness in demeanour”. The magistrate also found the appellant’s wife to be a witness not worthy of credit in the way she accounted for the appellant’s fingerprints on the glass.
The magistrate found the following proved beyond reasonable doubt:
-the appellant entered the shop on 6 or 7 March by forcibly breaking through the back door;
-the appellant approached the cabinet. The grooved handle on the right-hand side door was facing outwards. Although the magistrate was unable to determine where the lock was located in relation to the groove, it was found that the lock’s location did not seriously impede the glass panel from being removed from the cabinet by the appellant;
-as the glass door was being removed, it broke in a corner as depicted in the photographs;
-the appellant’s fingerprints were photographed and correctly located on the inside of the glass door, not placed on the outside as described by the appellant;
-the appellant entered the premises with the intention to steal items. The items have never been recovered.
The magistrate convicted the appellant on all counts.
The magistrate made the following observations in relation to his later refusal to grant a stay of proceedings:
A word should be said about the destruction of the glass panel. Defence counsel argued that the prosecution should be permanently stayed because among other things, the glass panel had been destroyed. The glass panel was said to be crucial to the defence case. The prosecutor correctly opposed the course. I declined to hear the argument before hearing evidence. Firstly defence counsel appeared to be insatiable in demands for evidentiary material from the prosecution, and manifest delay was apparent from the file. Secondly, the argument was already dealt with by a magistrate who became unexpectedly unavailable to hear the trial. The ruling was unfavourable to the defence. … To permanently stay a prosecution because photographs were to be tendered instead of the real evidence is a bold and unnecessary step. The informant has the duty to prove the allegations beyond reasonable doubt, and if the destruction of the real evidence and the substitution of the photographs produced reasonable doubt, my duty would be clear. In any event, I believe the case law suggests that the power to permanently stay should be sparingly used, and only in circumstances that would lead to an unfair trial of the accused, or that the alleged improper conduct of the prosecution case should not receive implied approval by the court in allowing the trial to continue. In my opinion, the subject allegations do not fall into those categories.
…
I do agree with counsel that the photographs are of poor quality and carelessly depicted. One would have thought that with the ready availability of colour digital photographic techniques, counsel would be less likely to be misled. It is not a basis that by itself, would not lead to a permanent stay of proceedings, nor, in my juror’s capacity, reasonable doubt that the incorrect surface was being photographed or depicted.
The Appeal
The grounds of appeal advanced were that the magistrate failed to give any or sufficient weight to the defendant’s innocent explanation for his prints on the glass door of the display cabinet and in so doing reversed the onus of proof. It was further complained that the magistrate failed to properly consider the contradiction between the witnesses Ms Wilson and Constable Spence and that in all the circumstances should have ordered a permanent stay.
Reversal of Onus
During the course of the hearing of the appeal attention was drawn to the following conclusion of the magistrate:
I am unable to find to the requisite degree that the defendant and his wife and witness [Kylie Whelan] attended the shop on that day preceding the closure, but I cannot preclude that event occurring on that day or some other day upon the available evidence.
The magistrate’s use of the expression “requisite degree” when referring to the appellant’s account disclosed an incorrect approach to the onus of proof. The magistrate incorrectly placed an onus on the appellant of proving his account and possibly of proving it beyond reasonable doubt. It was the prosecution who bore the onus of proving its case to the “requisite degree", that requisite degree being beyond reasonable doubt. The appellant bore no evidentiary or persuasive onus. To the contrary, it was incumbent on the prosecution to exclude any reasonable hypothesis consistent with the appellant’s innocence beyond a reasonable doubt.[3]
[3] See for example Moffa v R (1977) 138 CLR 601; Chamberlain v R (No 2) (1984) 153 CLR 521; 51 ALR 225; 58 ALJR 133; Hoch v R (1988) 165 CLR 292; 81 ALR 225; 62 ALJR 582; 35 A Crim R 47; R v Falconer (1990) 171 CLR 30; 96 ALR 545; 65 ALJR 20; 50 A Crim R 244. Shepherd v R (1990) 170 CLR 573 at 578, 586; 97 ALR 161; 65 ALJR 132; 51 A Crim R 181 per Dawson J; Peacock v R (1911) 13 CLR 619 at 628, 630; 17 ALR 566 per Griffith CJ.
The magistrate’s observations disclosed a serious and material error. The appellant was not required to satisfy the magistrate that his account of events, or the account provided by his witness, were proved to the requisite or any degree. Precisely what the magistrate meant by the words “requisite degree” is unclear. However, it is evident that the magistrate was requiring the appellant to carry some onus in respect of an aspect of his defence.
It is to be noted that elsewhere in the magistrate’s reasons he referred to the prosecution having to prove its case beyond reasonable doubt and to the presumption of innocence. However, remarks referred to earlier disclose that the magistrate did not appreciate that the prosecution had to exclude beyond reasonable doubt any reasonable hypothesis consistent with innocence. It is to be observed that the magistrate concluded “I cannot preclude” with reference to the appellant and his wife’s account of their attendance at the premises on the day before the incident. This suggests that one reasonable hypothesis consistent with innocence had not been excluded. This was an important matter having regard to Ms Wilson’s evidence of the events of that day.
There is a further concern. If the passage referred to above is indicative of the magistrate’s general approach, it is possible that the magistrate’s misunderstanding as to onus pervaded his whole approach to the evidence of the appellant and his wife.
The magistrate’s approach to the onus of proof has led to the risk of a miscarriage of justice. In the ordinary course this would lead to an order for a re-trial. However, for reasons to be discussed, the appropriate order is for a permanent stay.
A Permanent Stay
A critical issue at trial concerned the side of the glass door on which fingerprints appeared. If it could be established beyond reasonable doubt that the fingerprints were on the inside of the glass door, counsel for the appellant accepted that the application for a permanent stay must fail. If it was a reasonable possibility that the fingerprints were on the outside of the glass, counsel submitted that an acquittal or stay must result. Counsel submitted that the confusion and ambiguity surrounding the evidence of the fingerprints gave rise to a miscarriage of justice.
As earlier observed, it was the appellant’s case that the primary evidence tending to prove the commission of the offence was the discovery of the fingerprints on the glass door. An important item of evidence had been destroyed. Counsel submitted that the prosecution had failed to establish beyond reasonable doubt the side of the glass door on which the fingerprints had been discovered. It was the appellant’s case that as there was a reasonable doubt as to which side of the glass door the fingerprints were located, the appellant’s conviction resulted in a miscarriage of justice.
Although photographs of the fingerprints were taken, on their own the photographs were equivocal. They do not allow the viewer to determine on which side of the glass door the prints were positioned. As earlier noted the magistrate observed that the photographs were of “poor quality” and that the use of colour digital photographic techniques would have been desirable.
On appeal counsel for the respondent submitted that the magistrate was correct in refusing to grant a stay of proceedings indicating that the power to stay a prosecution should be used sparingly and only where to proceed with the trial would result in that trial being unfair. It was said that the failure of the police to retain the glass door rather than rely on the photographs did not fit into either of these categories. It was said that destruction of an item of evidence is not of itself grounds for a stay of proceedings.[4] Counsel referred to Cox J’s remarks in Holmden v Bitar: [5]
[T]he power to order a stay of proceedings – or, it may be, to dismiss them – as an abuse of a court’s process is a quite exceptional remedy. Any procedural device that has the effect of denying an informant a trial on the general issue is a very drastic one indeed. It is not to be used simply because the court perceives some feature of the prosecution that can be characterised as “unfair” … . It can be expected that the instances of its application will be rare.
It was said that this was not a case in which the destruction of the glass door gave rise to any unfairness.
Inconsistent Evidence
[4] Holmden v Bitar (1987) 47 SASR 509.
[5] Holmden v Bitar (1987) 47 SASR 509 at 517.
Counsel for the appellant submitted that there were a number of material inconsistencies within and between the evidence given by the Crown witnesses. Constable Spence gave evidence that fingerprints were located on the opposite side of the glass to the indented groove and therefore the inside of the glass door. It was said that the accuracy and reliability of Constable Spence’s evidence concerning the side of the glass door on which the fingerprints were located was critical to the prosecution. It was said that the inconsistencies gave rise to an irreconcilable conflict within the evidence adduced by the prosecution that ought to have raised a reasonable doubt about the appellant’s guilt. The conflict was said to arise in relation to evidence adduced from Ms Lazauskas, Ms Wilson and Constable Spence concerning the side of the glass door on which the indented groove was situated, the positioning of the lock, and the location of the break in the glass door in relation to the indented groove.
Ms Lazauskas, said that the indented grooves on the glass doors of the cabinet were positioned “in the centre of each door”. She said that when the doors were closed, the indented grooves were “on the edge”. When asked where the lock on the cabinet was positioned, Ms Lazauskas described a position near the second shelf from the bottom of the cabinet.
Ms Wilson provided a more detailed description of the glass door. When she first observed the glass door following the trespass she described the glass door as being the right-hand side door of the cabinet. She noted that it was broken in the top right-hand corner. Ms Wilson described the glass door as having an indented groove on its right-hand side. She gave evidence that when the door was in the cabinet, the indented groove was on the outer right-hand side edge of the cabinet when the doors were in the closed position. Ms Wilson said that the indented groove would have been on the side of the glass facing the outside of the cabinet. As earlier observed, Ms Wilson maintained that the fingerprints she observed on the glass door after the trespass were on the side of the glass that would have been facing the inside of the cabinet - the opposite side of the glass to the indented groove.
Constable Spence gave evidence that the fingerprints were located on the inside of the glass door. As earlier observed, he said that the fingerprints were found on the opposite side of the glass to the indented groove. He relied on notes taken at the time of the investigation, including a diagram, when giving evidence. When referring to his notes, Constable Spence recalled that the cracked or broken part of the glass door was on the bottom corner of the door. However, he acknowledged that the cracked area could have been at the top of the glass door, depending on how it was fitted in the cabinet at the time. Constable Spence gave evidence that at the time of the investigation he believed the lock of the cabinet to be located at the bottom of the glass doors.
The evidence of these three witnesses gives rise to a considerable degree of confusion. The glass door was described as the right-hand sliding door of the cabinet. The photographs show that the glass door had been broken in one corner. The photographs depict that labels were placed adjacent to the fingerprints, on the same side of the glass as the fingerprints. However, the photographs taken by Constable Spence and examined by Constable Andrews do not show the position of the indented groove in relation to the top and bottom of the door. The photographs do not reveal whether the fingerprints are on the same side as the indented groove or the other side. No photograph disclosed the location of the lock.
Constable Spence’s notes contained at least the error referred to earlier. As a consequence there was a real possibility that his evidence was inaccurate and unreliable. Had the glass door been retained, it would have been possible to determine conclusively on which side of the glass door the prints were positioned. The destruction of the glass door deprived the appellant of his only real means of challenging Constable Spence’s evidence. The destruction of the glass door deprived the appellant of a fair trial.
Constable Spence’s description of the location of the lock and the broken glass door is necessarily based on surmise as the glass door had been removed from the cabinet. Ms Wilson’s evidence as to the location of the lock and the broken glass door differs from the information recorded in Constable Spence’s notes. It is possible that Constable Spence was mistaken as to what was the top and what was the bottom of the glass door. As a result it is possible that he may have been mistaken as to which side of the glass would have been facing the inside of the cabinet. The confusion surrounding the glass door and the location of the fingerprints could have been readily resolved had the glass door been retained.
Prejudice
As acknowledged by both counsel, the central issue at trial was the precise location of the fingerprints. The appellant provided an account of the circumstances consistent with his fingerprints being on the outside of the glass. The appellant was denied the opportunity to examine the glass door and the ability to challenge the evidence of Constable Spence and Ms Wilson with the benefit of that item of evidence. The confusion surrounding the evidence of the prosecution witnesses in relation to the description of the glass door and the location of the fingerprints, coupled with the destruction of the actual glass, gave rise to a risk of miscarriage of justice.
The way in which the trial proceeded highlighted the importance of the retention of the glass door. As earlier observed, had the glass door been retained, doubt surrounding the location of the fingerprints could have been readily and determinatively resolved. There is a clear public interest in the careful storage of crucial exhibits. This forms an important component of the provision of a fair trial. In the present case, the public interest in a fair trial outweighs competing public interests.
The destruction of the glass door gives rise to unfairness justifying a stay of proceedings. The absence of any bad faith on the part of the prosecution does not obviate the unfairness caused by the appellant’s lost opportunity to fully examine the evidence and challenge the prosecution case. As observed by Lander J in Duncome-Wall v Police:[6]
The intentions or motives of those responsible for the prosecution were irrelevant since a combination of circumstances can arise entirely innocently but as a result it would be oppressive to proceed. …
In the circumstances of this case the destruction or the obliteration of the evidence was such as to lead to unfairness and, in my opinion, was such as to justify a permanent stay of the criminal proceedings. There was nothing that could have been done to rectify or remedy the absence of the evidence.
[6] Duncombe-Wall v Police (1998) 197 LSJS 398 at 409.
Conclusion
The appellant is granted leave to amend his notice of appeal to raise the complaint that the magistrate reversed the onus of proof. The appeal is allowed. The convictions and sentence are set aside. Having regard to the earlier conclusions concerning the reversal of the onus of proof and the destruction of the glass door, an order is made permanently staying the proceedings.
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